A GJ Advances article.

Abstract

The principal purpose of this paper is to abandon once and for all the contention that ‘knowing receipt’ should be construed as an equitable species of unjust enrichment but to argue that the recipient of trust assets must nonetheless come under a liability arising from unjust enrichment. The terms of the debate have been fundamentally changed, not only by new cases, but, and indeed more, by two articles of major importance, one by Lord Nicholls of Birkenhead and the other by Professor Lionel Smith. Re Montagu provides a convenient platform from which to present the case. The argument cannot be satisfactorily conducted unless the claim in unjust enrichment is seen in the context of the whole package of weapons used to protect wealth held behind the curtain of a trust. Accordingly the paper considers: (A) the direct assertion of entitlement to an asset (vindication); (B) the assertion of a personal claim arising from the wrong of misappropriation; and (C) the assertion of a personal claim arising from unjust enrichment. The paper argues, against Lionel Smith, that, having (A) and (B), equity must accept (C) on pain of creating, not only indefensible asymmetries with the common law, but also of tolerating contradictory commitments internal to itself.

Originally published in Global Jurist Advances.

Recommended Citation

Birks, Peter B.H. (2001) "Knowing Receipt: Re Montagu’s Settlement Trusts Revisited," Global Jurist Advances: Vol. 1 : Iss. 2, Article 2.
Available at: http://www.bepress.com/gj/advances/vol1/iss2/art2